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Gardner v. CLC of Pascagoula, L.L.C.

United States Court of Appeals, Fifth Circuit

February 6, 2019

KYMBERLI GARDNER, Plaintiff - Appellant
CLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living Center, Defendant-Appellee

          Appeal from the United States District Court for the Southern District of Mississippi

          Before KING, DENNIS, and COSTA, Circuit Judges.

          Gregg Costa, Circuit Judge.

         The opinion previously issued in this case is withdrawn, and the following opinion is substituted in its place.

         Claims of sexual harassment typically involve the behavior of fellow employees. But not always. Because the ultimate focus of Title VII liability is on the employer's conduct-unless a supervisor is the harasser, a plaintiff needs to show that the employer knew or should have known about the hostile work environment yet allowed it to persist, see Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998))[1]-nonemployees can be the source of the harassment. See 29 C.F.R. § 1604.11(e) ("An employer may . . . be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.").

         Customers are one example of third-party harassers. See generally Lori A. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer, Client, or Patron, 163 A.L.R. Fed. 445 (2000). A leading case on third-party harassment addressed whether Pizza Hut could be liable for customers' harassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067, 1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as one case addresses a high roller's harassment of a cocktail waitress and another a card player's harassment of a blackjack dealer. See generally Oliver v. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024 (D. Nev. 1992) (latter).

         This case presents one of the more challenging situations in which to apply this principle that an employer can be liable for a hostile work environment created by nonemployees: a nurse alleges that an assisted living facility allowed such an environment to continue by not preventing a resident's repetitive harassment. The unique nature of that workplace is an important consideration. As we and other courts have recognized, the diminished capacity of patients influences whether the harassment should be perceived as affecting the terms and conditions of employment. We must decide when the allegations of harassment nonetheless become so severe or pervasive that fact issues exist requiring a jury to decide the question.


         Kymberli Gardner worked as a Certified Nursing Assistant at an assisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community Living Center, from 2012 until she was fired in 2015.[2] Gardner is an experienced health aide. Before working for CLC, she was a caregiver for several facilities and in-home care providers, two of which specialized in care for the mentally disabled. Gardner was trained in defensive and de-escalation tactics for aggressive patients. As one might expect, during her years as a caregiver she often worked with patients who were "either physically combative or sexually aggressive."

         But what she experienced with one patient at the CLC facility rose to a new level. J.S. was an elderly resident who lived at Plaza between 2006 and 2014. He had a reputation for groping female employees and becoming physically aggressive when reprimanded. J.S. had been diagnosed with a variety of physical and mental illnesses including dementia, traumatic brain injury, personality disorder with aggressive behavior, and Parkinson's Disease. J.S.'s long history of violent and sexual behavior toward both patients and staff included the following:

• J.S. had to be transferred from his initial residence wing because he had become "combative" and had physically assaulted his bedridden roommate during a dispute over a television.
• J.S. was much more aggressive and sexually inappropriate towards his female caregivers than even other problematic nursing home residents; he would sexually assault them by grabbing their "breast[s], butts, thighs, and try[ing] to grab [their] private areas."
• J.S. asked for explicit sexual acts on a regular basis and made lewd sexual comments toward female staff. He asked female employees to engage in sexual activity with him "[a]ll the time."

         Gardner, who became responsible for J.S.'s care, experienced these types of inappropriate behavior from J.S. "[e]very day." Gardner reported that J.S. would physically grab her and make repeated sexual comments and requests. She and other CLC employees documented J.S.'s behavior by ...

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